Game Changers: Some High-Profile Supreme Court Cases This Term Chart a New Course for Gay Rights and Voting Practices

By Savage, David G. | State Legislatures, September 2013 | Go to article overview

Game Changers: Some High-Profile Supreme Court Cases This Term Chart a New Course for Gay Rights and Voting Practices


Savage, David G., State Legislatures


The Supreme Court ruled on several cases this term that have a direct impact on states. It ushered in a new era of equal rights for gays and lesbians, as it struck down part of the federal law that denied benefits and tax breaks to legally married same-sex couples. At the same time, another era of civil rights law ended, when the court struck down part of the historic Voting Rights Act that put much of the South under special federal oversight.

These two rulings had few fans in common. Those who hailed one as long overdue condemned the other as an appalling mistake. But these opinions and several others nonetheless share a common theme under Chief Justice John Roberts--that state legislatures have primary authority to make the laws for much of what goes on within their borders, at least most of the time.

Gay Rights Win

The Supreme Court took on gay rights in United States v. Windsor, which focused on Section 3 of the 1996 federal Defense of Marriage Act (DOMA). The federal law defines "marriage" as a legal union between one man and one woman, and Section 3 says the federal government would not recognize same-sex marriages if legalized elsewhere, which has prevented couples from filing a joint federal tax return, or, if they were federal employees, from covering their spouses on their health care plans. Section 2 states that no state need recognize these marriages either, a provision that still stands.

Congress passed the law before any state allowed gay marriages, but it has became a point of contention as more couples marry in the 13 states that now allow same-sex marriage.

In a 5-4 decision, Section 3 was declared unconstitutional for two reasons. First, it intrudes on states' turf. "The federal government, throughout our history, has deferred to state-law policy decisions with respect to domestic relations," Justice Anthony Kennedy wrote. "By history and tradition, the definition and regulation of marriages ... has been treated as being within the authority and realm of the separate states."

The second reason Kennedy gave was that excluding these couples from federal benefits denies them their constitutional rights to liberty and equality. "DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal," he wrote. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan agreed.

The opinion can be interpreted in a couple of ways. By stressing the states' role in regulating marriage, Kennedy may be suggesting states are free to decide for themselves whether to permit same-sex marriages. On other hand, by characterizing the issue as one of equal rights, the opinion lays the groundwork for the argument that barring same-sex marriages denies gays and lesbians their equal rights.

In his dissent, Justice Antonin Scalia said he could see what is coming. "No one should be fooled. It's just a matter of listening and waiting for the other shoe to drop. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition." The dispute is likely to play out in the lower courts now, as gay plaintiffs sue to challenge their state's Defense of Marriage laws.

The Supreme Court also ended one long legal battle by throwing out the defenders of California's gay marriage ban, Proposition 8, thereby clearing the way for same-sex marriages there. This back-and-forth dispute began in 2008 when the California Supreme Court ruled the state's ban on same-sex marriage violated the state's constitution. A few months later, the voters approved a ballot measure to amend the state constitution and limit marriage to a man and a woman. Then, in 2010, two gay couples who wished to marry sued in federal court and won. The judge ruled they had a constitutional right to marry as a matter of liberty and equality. …

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